Hoile v. State, 87, September Term, 2007.

CourtCourt of Special Appeals of Maryland
Citation948 A.2d 30,404 Md. 591
Docket NumberNo. 87, September Term, 2007.,87, September Term, 2007.
PartiesSharden Busie HOILE v. STATE of Maryland.
Decision Date07 May 2008
948 A.2d 30
404 Md. 591
Sharden Busie HOILE
STATE of Maryland.
No. 87, September Term, 2007.
Court of Appeals of Maryland.
May 7, 2008.
Reconsideration Denied June 10, 2008.

[948 A.2d 33]

Brian L. Zavin, Asst. public Defender (Nancy S. Forster, Public Defender), on brief, for petitioner/cross-respondent.

Sarah Page Pritzaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), Russell P. Butler (Amber L. Bryant, Maryland Crime Victims' Resource Center, Inc.), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J.,* RAKER, HARRELL, BATTAGLIA, GREENE, JOHN C. ELDRIDGE, (Retired, specially assigned) DALE R. CATHELL, (Retired, specially assigned), JJ.


Gallia est omnis divisa in partes tres.1 The first part of this opinion provides underlying

948 A.2d 34

facts of the criminal case and its convoluted procedural path to our door. The second part explains the Court's reasons for denying earlier the defendant's Motion to Strike Appearance of the crime victim's attorney in the appeal. In the third and final part of this opinion, we shall address the merits of the issues for which certiorari was granted.

I. Facts and Procedural History

On 10 April 1998, Sharden Busie Hoile, Petitioner/Cross-Respondent here, pled guilty in the Circuit Court for Prince George's County to a charge of first degree assault of Ms. Tracy L. Palmer, a former romantic partner. Hoile was sentenced to 15 years in prison, which was suspended in favor of five years of probation. On 18 May 2001, Hoile was found to have violated that probation and therefore was ordered by the trial judge to serve the original 15 year sentence concurrently with a sentence Hoile then was serving for a separate conviction in the Circuit Court for Calvert County.2 Hoile filed a motion for reconsideration of sentence in the Prince George's County case.

On 10 December 2004, the Circuit Court for Prince George's County held a hearing on Hoile's motion. The motion was granted. As a result, Hoile ostensibly was to be committed to the Department of Health and Mental Hygiene for substance abuse treatment.3 The Circuit Court for Prince George's County forwarded a copy of the order imposing the altered sentence to the Circuit Court for Calvert County. The Circuit Court for Calvert County declined, however, to reconsider Hoile's sentence in its case.4 This result occasioned the Circuit Court for Prince George's County to hold another hearing on 8 April 2005, at Hoile's request, to consider the effect on its 10 December 2004 ruling of the refusal by the Calvert County court to alter its sentence of imprisonment.5 The Circuit Court for Prince George's County, upon reflection, again modified the sentence in its case, the present one, to time served and placed Hoile on five years of supervised probation.

On 8 December 2005, Ms. Palmer wrote a letter to the trial judge in Hoile's case in

948 A.2d 35

Prince George's County stating that she had not been notified6 of the 10 December 2004 or 8 April 2005 hearings, although she previously requested such notification in writing in a letter dated 2 July 1998 to the Assistant State's Attorney who prosecuted the case.7 The court held a hearing on 10 February 2006, where Palmer was represented by counsel, and found as a fact that the victim had not been notified properly, as required by Maryland Code (2001, 2007 Cum.Supp.), Criminal Procedure Article,8 §§ 11-104,9 11-503,10 and

948 A.2d 36

Maryland Rule 4-345(e)(2) and (f).11 On Palmer's motion, the trial court vacated the altered sentence imposed on 8 April 2005.

After the court vacated the reconsideration of sentence, the following exchange took place:

Assistant State's Attorney: And may I inquire of the Court procedurally, now that the sentence has been vacated, original sentence stands. Will a new order need to be issued to the Department of Corrections so that regardless of Mr. Hoile's status in his Calvert County case, that he is — he is incarcerated under the sentence in this matter?

Counsel for Palmer: A new commitment order will need to be filed Your Honor.

Court: The Clerk agrees with you, and I'm sure she will look into that.

In effect, the vacation of Hoile's reconsidered sentence reinstated the immediate prior sentence (the one imposed upon finding a violation of probation), at least until the trial judge were to act anew on the now resurrected motion to reconsider sentence. Before the judge could move on to revisit the merits of Hoile's Motion to Reconsider Sentence at the 10 February 2005 hearing, Hoile asked for a continuance. One was granted.

On 13 February 2006, a new commitment order was filed by the Clerk of the Circuit Court, committing Hoile to the Division of Correction for the remainder of the 15 year sentence.12

Hoile filed an immediate appeal to the Court of Special Appeals. In addition, Hoile filed a motion to exclude Palmer's participation, individually or through counsel, as a party to the proceedings in the Court of Special Appeals. The intermediate appellate court originally denied the motion, without prejudice, permitting Hoile to seek the same relief in his reply brief or at oral argument. Counsel for Palmer filed a brief (accepted by the intermediate appellate court) and participated in oral argument in the Court of Special Appeals as if a party. Although Hoile, in his reply brief, renewed his request to

948 A.2d 37

strike the appearance of Palmer's counsel, the Court of Special Appeals dismissed the appeal without acting on the motion. The intermediate appellate court, in an unreported opinion, dismissed the appeal as premature because the trial judge in the Circuit Court for Prince George's County had not acted yet on the revived motion to reconsider sentence.13

On 5 December 2007, we granted Hoile's Petition for Writ of Certiorari and the State's Cross-petition. The Petition and Cross-petition collectively raise four questions:

1. Did the Court of Special Appeals err by dismissing Petitioner's appeal from an order of the trial court reimposing Petitioner's sentence of incarceration where the trial court previously had granted [Hoile's] motion for reconsideration and modified his sentence to probation but then vacated that sentence at the request of the victim who alleged she had not been notified of the reconsideration hearing?

2. Did the trial court illegally increase [Hoile's] sentence when it vacated his sentence of probation and reimposed a sentence of incarceration?

3. Did the trial court err in granting a motion to vacate judgment where that motion was filed by the victim, a non-party to the case?

4. Is Hoile precluded from arguing that the trial court illegally increased his sentence?

On 3 January 2008, Hoile filed a Motion to Strike the Appearance of Counsel for Palmer in the proceedings before this Court. Palmer opposed the motion. The State filed a memorandum of law, the content of which we interpret as urging the Court to "do the right thing" regarding the motion. On 11 March 2008, after hearing oral arguments on the motion only from Hoile and Palmer (the State declined to argue), we issued an Order denying Hoile's motion. In section II of this opinion we explain our reasons for denying the motion. Although an interlocutory ruling, the denial of the motion deserves an explanation because of the relative "sea change" in our jurisprudence it represents regarding the status of a victim's participation in a criminal appeal.

II. Motion to Strike Appearance of Counsel

In his Motion and supporting Memorandum of Law, Hoile contended that Palmer is not a party and should not be able to participate in the case as a matter of right.14 Palmer countered that she has a right to brief and argue the issues in the case as if a party, citing, among other supporting reasons, recent changes to Maryland Rule 8-111.15

Maryland Rule 8-111 currently states:


(a) Formal Designation.

948 A.2d 38

(1) No Prior Appellate Decision. When no prior appellate decision has been rendered, the party first appealing the decision of the trial court shall be designated the appellant and the adverse party shall be designated the appellee. Unless the Court orders otherwise, the parties to a subsequently filed appeal shall be designated the cross-appellant and cross-appellee.

(2) Prior Appellate Decision. In an appeal to the Court of Appeals from a decision by the Court of Special Appeals or by a circuit court exercising appellate jurisdiction, the party seeking review of the most recent decision shall be designated the petitioner and the adverse party shall be designated the respondent. Except as otherwise specifically provided or necessarily implied, the term "appellant" as used in the rules in this Title shall include a petitioner and the term "appellee" shall include a respondent.

(b) Alternative References. In the interest of clarity, the parties are encouraged to use the designations used in the trial court, the actual names of the parties, or descriptive terms such as "employer," "insured," "seller," "husband," and "wife" in papers filed with the Court and in oral argument.

(c) Victims and Victims' Representatives. Although not a party to a criminal or juvenile proceeding, a victim of a crime or a delinquent act or a victim's representative may:

(1) file an application for leave to appeal to the Court of Special Appeals from an interlocutory or a final order under Code, Criminal Procedure Article, § 11-103 and Rule 8-204; or

(2) participate in the same manner as a party regarding the rights of the victim or victim's representative. [Emphasis added.]

Section (c) was added by a Rules Order of this Court signed on 4 December 2007. The change became effective on 1 January 2008.16 Thus, this motion presents our first opportunity to construe the new portions of the rule. Palmer contends that Maryland Rule 8-111(c)(2) permits her to participate in this appeal "in the same manner as a...

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